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Decisions of the Superior Courts of New South Wales, 1788-1899

R v Curry and Wilkinson [1825] NSWSupC 42

larceny by servants - examination by jury members

Supreme Court of New South Wales

Stephen J., 12 September 1825

Source: Australian, 15 September 1825


William Curry and William Wilkinson were put to the bar charged with stealing a quantity of pork from the Commissariat Stores at Liverpool, on the 11th of July last, the property of the Crown.[1 ]

A second and third count laid the property as belonging to Wm. Wemyss, Esq. Commissariat, and Frederick Jones, storekeeper.

Frederick Jones examined - I am storekeeper in the Commissariat Office at Liverpool, I remember the stores having been robbed on the 11th of July last.  I had been in the stores in the course of that morning, and on leaving them secured the door by locking it; and having taken the key out of the lock went home and deposited it in my bed room.  This was between the hours of 12 and 1; there was only one key to the store door, and that was always left at my house.  I went out with a party about a quarter before 3 on the same day, and did not return until half past 5 o'clock in the evening.  Curry was overseer at the Commissariat Stores, and Wilkinson was clerk in the same office.  There was a great quantity of salted colonial pork in the stores; it would have been almost an impossibility to notice if any had been stolen, unless a very considerable quantity indeed.  Mr. William Alexander is the principal person in charge of the stores, he was absent; both prisoners knew that he used to attend regularly at the stores daily.

Cross-examined for the prisoner Wilkinson.  The situation of Wilkinson's house is such as that the the [sic] Commissariat Stores are on his way home from the office.  Does not recollect hearing Wilkinson say that the sentry was drunk.  Wilkinson said that £20 had been offered him to observe secrecy on the subject.  Was present at the Police Office when examinations were entered into on the subject; they were commenced at the instance of Wilkinson.  He brought Curry there fo [sic] prosecute him.  Always understood that Wilkinson was the prosecutor; some depositions were taken before the magistrates in the absence of Wilkinson.  The sergeant said it was contrary to the sentry's orders, who was planted on the stores, to admit any person into the stores after hours, but Mr. Alexander and witness.  Those orders formed part of the management of the stores.  There was no particular intimacy subsisting between the prisoners at the bar.  Always entertained an high opinion of Wilkinson.  He is a man possessed of fair property.

Cross-examined on behalf of Curry.  Wilkinson is in the habit of giving orders to Curry, and the latter instructed to obey them.

Patrick Burke deposed, that he is a soldier belonging to the 57th regt.; was on sentry at the Commissariat Stores between the hours of one and three on the 11th of July last; the prisoner Curry, accompanied by another man, came to the stores with a pickle tub on a wheelbarrow which they brought; has since heard the man's name - it is Rogers; asked Curry where he was going; he said into the stores for some pork which he wanted for the Commissariat; told him in reply that he must be passed, meaning by a superior officer; Curry said the commissariat clerk was following to take the pork up to the house; he meant the prisoner Wilkinson, whom Curry pointed out as walking toward the stores; witness knows him personally; has often seen him before; the clerk then shortly came up and passed him into the stores; the door was opened by a key, which Curry took out from his pocket, and said, in witness's hearing that he had it from Mr. Jones, the store keeper, who had gone out a boating; Wilkinson was present; he remained outside of the stores while Curry went inside; the man who came with Curry took the tub out of the barrow and carried it into the stores; they shortly afterwards brought a quantity of pork, and the man called Rogers, wheeled the tub on the barrow away, the clerk called Curry to him, and they both followed in company together; did not know where either of the two prisoners resided; Wilkinson returned while witness was on his post and inquired if Mr. Jones the store-keeper had been there? Witness told him he had not; this was about half past two o'clock, and he then walked away.

Cross-examined - During the whole time on duty at the stores did not drink any spirits; had orders only to allow three persons within the stores, the commissariat storekeeper, and steward; understood by the word steward, that it meant Wilkinson; was relieved from duty at three o'clock; at half past four Wilkinson came to the barracks and inquired of witness who had been on duty at the stores between the hours of one and three? witness said he was; he asked who had been at the stores during those hours? witness replied himself and Curry, for some pork; it was not then quite half past two o'clock; Rogers was called into the stores by Curry to assist him in taking the tub to the barrow; Wilkinson expressed no surprise on seeing Rogers in company with Curry; did swear before the magistrate that it was by Wilkinson's request that the door was opened; has seen Curry in the Sydney Gaol since his commitment; merely bid him good morning.

Cross-examined on behalf of Curry - Curry said that he had been sent by the commissariat, and that Wilkinson had ordered him to come to the stores; he sat down until the clerk came up and passed him into the stores; witness's impression was that he acted under the orders of Wilkinson.

Re-examined - Curry came as from the commissariat; witness communicated his suspicions of the transaction to the corporal of the guard, but he took no notice, and the affair passed off; no suspicion of the affair had arisen in the barracks before Wilkinson came and spoke about it to the serjeant of the company, who ordered me to be taken into custody; the serjeant said that it was by orders of Wilkinson that I was put under an arrest; have often been upon duty at the stores prior to that occasion; the clerk never asked admittance by himself before; he said that he had Curry taken up, and he therefore came to request the serjeant to take witness also.

James Rogers, an approver, stated, that he was employed by Curry to wheel a barrow to the stores for some pork; Wilkinson was present, and gave Curry a key; they had some private conversation together; heard Wilkinson say he would shortly follow; both prisoners went into the store together; the clerk ordered witnesses to take the pork to Curry's house, and gave him a dump for his trouble; heard Wilkinson say he would send to Curry's house for it in the evening; saw the latter return the key to Wilkinson; he came to Curry's house an hour afterward; the latter was in bed, but got up, and both went out together.

Cross-examined - Saw Wilkinson take the key from Curry; was threatened by the constables who came to search the house to be taken to the gaol, unless he confessed where the key was; was accordingly taken into custody; never thought of asking what key he meant; witness stated in his examination before the magistrates that he knew nothing about the store key.

Cross-examined on behalf of Curry - Curry was a little in liquor when Wilkinson gave him the key to go to the stores; the latter said he would follow.

Re-examined - Wilkinson was the sole author in disclosing the robbery; had he thought proper to conceal it he might have done so.

Mr. John Ikin deposed to his having received information of the robbery by Wilkinson at half past two o'clock in the day.

William Tristam, gaoler, corroborated the last evidence.

On behalf of the prisoners several witnesses were called, whose evidence went to invalidate the testimony of the soldier, and to shew that he had varied in his evidence at the Police Office and then in Court.  The soldier having stated on the former occasion that when he saw Wilkinson at a distance he allowed the door of the stores to be opened.  It formed  part of the defence of the prisoner Wilkinson that he did not go to the stores, and that he merely saw the store door open at an unusual hour, and on approaching it saw Curry and another man wheeling a barrow from the stores, and suspecting something was going on incorrectly, went to the Police and reported the robbery.

The Judge summed up the case to the Jury, who found both prisoners Guilty.

In the course of this case Counsel for the prisoner Wilkinson found it necessary to cross-examine the soldier very minutely and rigidly.  On asking him how often he had been flogged or punished for misconduct, two or three of the Jurors immediately objected to the question, and interrupted the answer.  The Counsel very properly contended that the Jury had no right as a Jury to object to the question, it being exclusively the province of the Court to decide upon the legality and propriety of a question.  The Court held the question to be rightly put.



[1 ] See also Sydney Gazette, 15 September 1825.

Published by the Division of Law, Macquarie University